Immigration Status of Students - CalEdFacts

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Proposition 187 of 1994 and the Welfare Reform Act of 1996

The immigration status of students in California has been the subject of a variety of laws and legal challenges. Current law states that school-age children who reside in California must not be denied a free public education based on citizenship status. Resident students are required by statute to attend public school from ages six to eighteen.

Plyler v. Doe

On September 27, 1981, the California State Board of Education (SBE) filed an amicus curiae brief with the U.S. Supreme Court in the case of Plyler v. Doe, 457 US 202 (1982). In arguing against Texas statutes that denied public school enrollment and withheld state funds from local school districts for children “illegally admitted” to the United States, the SBE stated:

As educators concerned with the provision of quality education for all children and for the improvement of society through an educated population, the California State Board of Education believes strongly that there is no rational educational or fiscal purpose in excluding children of illegal aliens from receiving the educational opportunities available to all other children. (27)

Consistent with the SBE’s position, the U.S. Supreme Court held the Texas statute unconstitutional because it violated the equal protection clause of the Fourteenth Amendment to the U.S. Constitution, which protects “any person,” not just “any citizen.” Because the Plyler decision applies to every state and is still valid, the same test of constitutionality applies to any state law that conditions California school attendance on citizenship.

In 1994, California voters enacted Proposition 187, which placed severe restrictions on benefits provided to illegal immigrants. This proposition was challenged in court and determined to be unconstitutional and unenforceable, based on the Plyler case. (See California Education Code Section 48215; League of United Latin American Citizens v. Wilson [CD Cal. 1997] 997 F.Supp. 1,244.)

Welfare Reform Act of 1996

Provision of public services to immigrants is addressed in the federal Personal Responsibility and Work Opportunity Reconciliation Act of 1996. Certain public health and welfare benefits are denied to aliens who are not “qualified” under the terms of the Act. This prohibition does not extend to basic public education. Section 433(a)(2) of Title IV (United States Code [USC], Title 8, Section 1643[a][2]) specifically states, “Nothing in this title may be construed as addressing alien eligibility for a basic public education [emphasis
added] as determined by the Supreme Court of the United States under Plyler v. Doe (457 U.S. 202)(1982).”

However, in 1997, federal immigration law was changed to say that a non-immigrant foreign student could only obtain an F-1 student visa to study in the U.S. if the student paid the school of attendance a fee equal to the cost of educating the student. A school that wishes to accept such students must file an application and be approved to admit foreign students. (8 USC Section 1184[m][1][B]; 8 California Code of Regulations Section 214.3.)

Although a California school is not required to inquire about immigration status, once the school knows a student is not a citizen, the student should be directed to pay the fee required by federal law.

AAV of Rulemaking File 2016-1004-05C (added 21-Nov-2016)
Accessible Alternative Version (AAV) of Form STD. 400, Rulemaking File submitted to the Office of Administrative Law on October 4, 2016 - File number 2016-1004-05C.